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A. Mohammed Jaffar Saheb Vs. A. Palaniappa Chettiar - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtChennai High Court
Decided On
Reported in(1964)1MLJ112
AppellantA. Mohammed Jaffar Saheb
RespondentA. Palaniappa Chettiar
Cases ReferredArunachala Naicker v. Gopal Stores
Excerpt:
.....there is anything repugnant in the subject or context'.11. the decisions of this court disclosing conflict of judicial opinion may now be referred to. the landlord filed an application for eviction of the tenants on the ground that he required the rooms as additional accommodation for his business in good faith for the expansion of his lodging house. the learned district judge was perfectly right in finding that the landlord, has established the fact that he is in need of additional accommodation for his own residential purposes. provided that, in the case of an application under clause (c) the controller shall reject the application if he is satisfied that the hardship which may be caused to the tenant by granting it will outweigh the advantage to the landlord......7(3)(e) of the act to evict the tenant from the portion in his occupation. at page 207, the learned judge pointed out as follows:the position is not free from difficulty in view of the statute defining a building as also part of a building. it is in the light of this, that section 7(3)(c) has to be applied to the present case. as i see it, the position is in no way different to that of a landlord doing business in one building purchasing a building next to his and seeking to eject from it a long-standing tenant doing business there for twenty-five years. to such a case section 7(3)(c) would in my opinion not apply. nor will it apply to the present case merely by reason of the fact that the portions of this building in which petitioner and respondent did business separately are.....
Judgment:

G.R. Jagadisan, J.

1. This Civil Revision Petition has been placed before a Division Bench in view of conflict of judicial opinion regarding the proper interpretation of the provisions of Section 7(3)(c) of the Madras Buildings (Lease and Rent Control) Act, 1949. Venkatadri, J., who heard the petition in the first instance, has referred to three decisions of single Judges of this Court, in his order of reference and, has observed that they manifest diversity of views on the subject.

2. We shall first set out the facts giving rise to this Civil Revision Petition before discussing the question of law raised in the case. It will be convenient to refer to the petitioner as the tenant and the respondent as the landlord in this judgment. The Madras Buildings (Lease and Rent Control) Act, 1949 (XXV of 1949) will hereafter be referred to as the Act. The landlord is the owner of a building in the Municipal Town of Erode which consists of one block. A plan has been filed before us and it can be referred to just for the purpose of knowing the topography of the place where the building is situate. On the east the building is bounded by a public street called R.K.V. Road and on the west there is another public street called Nethaji Road. Facing east and facing west there are several shops, each bearing a distinct and separate door number. These shops are let out to various tenants and they are in the ground floor of the building. Most of the shops on both the roads have a terraced roof. The tenant in the present case is carrying on business in the shop Door No. 290, facing Nethaji Road. In between the two rows of shops there is a mandi or god own in the possession and occupation of the landlord. As stated already, the building is in one block though portions of. the building have been let out to various persons for non-residential purposes. There is no dispute that the landlord is having his residence in the first floor over the shops facing R.K.V. Road. There is also no dispute that the upstair portions of the shops bearing Door Nos. 287, 288, 289, 290 and 291 facing Nethaji Road are in the possession of the landlord. There is some controversy as to whether the landlord is in occupation of the upstair portion in Nethaji Road. The tenant does not deny the fact that the landlord has not let out this upstair portion to anybody.

3. The landlord filed an application to evict the tenant from Door No. 290 on two grounds. He alleged that the tenant has sub-let portions of Door No. 290 to a tailor. This ground of sub-letting has been found against by the Courts below and, in fact, the landlord himself abandoned it at a very early stage of this proceeding. Another ground on which eviction was sought was that the size of the landlord's family has grown as his sons have married and begotten children, that the existing accommodation in this building was insufficient for a comfortable living of all the members of the family and that he required Door No. 290 for the purpose of widening a staircase lying adjacent to it in Door No. 291 and for purposes of putting up a bath room and a lavatory. This is what is alleged by the landlord in his petition for eviction:

The residential portion in the occupation of the petitioner has become thoroughly insufficient to accommodate his family. Three of his sons have been married and have children.

The upstair portion of the building is being kept unused as there is no proper steps to reach the same. The petitioner has to put up additional structures in the upstairs to accommodate his family in its present magnitude. Proper staircase has to be provided to reach the upstair portion and for this purpose, the premises in the occupation of the respondent is also required. Additional lavatory and bath room have to be constructed over the portion in the occupation of the respondent.

The answer of the tenant regarding the alleged need of the landlord for additional accommodation was that the averments of requirement for purposes of putting up lavatory and bath room are all false and invented for purposes of this petition to evict the respondent with a view to rackrent it. The tenant stated that he has been in possession of the premises for more than twenty years and has been paying that rent regularly. He also questioned the bona fides of the application for eviction.

4. We must point out at this stage that though the application for eviction purported to be one under Section 7(2)(ii) of the Act, the substance of the averments in the eviction application really indicates that the application was preferred under Section 7(3)(c). There cannot be any doubt that the tenant himself understood the ground for eviction as one based on the latter provision. The parties, therefore, went to trial before the Rent Controller on this single issue, viz., whether the land lord bona fide requires additional accommodation for his residential purposes and whether there are sufficient grounds for evicting the tenant under Section 7(3)(c) of the Act.

5. The learned District Munsif of Erode (Rent Controller) held that the landlord bona fide required the premises as and by way of additional accommodation and that sufficient grounds for evicting the tenant under Section 7(3)(c) have been established. He accordingly directed the eviction of the tenant. On appeal by the aggrieved tenant before the Subordinate Judge of Coimbatore the Subordinate Judge disagreed with the findings of the Rent Controller. In his view the landlord could not obtain the benefit of additional accommodation unless it was shown that he was in occupation of a part of the building for residential purposes. Because of the fact that the portion bearing Door No. 290 in the occupation of the tenant bore an independent door number, the learned Subordinate Judge reached the conclusion that it was not part of the building belonging to the landlord and that the requirements of Section 7(3)(c) of the Act were not present. He was also of the opinion that the evidence on record was not sufficient to establish the bona fides on the part of the landlord. The result was that the appeal was allowed and the application for eviction was directed to be dismissed. The landlord preferred a revision petition before the District Judge of Coimbatore. The learned District Judge held that the Subordinate Judge misdirected himself in not approaching the question in issue properly and from the correct standpoint, that there were enough grounds to sustain the order of the Rent Controller, that there could be no question of the bona fides of the landlord in seeking to evict the tenant and that the order of the learned Subordinate Judge was erroneous. He therefore set aside the order of the Subordinate Judge and restored that of the Rent Controller. It is in these circumstances that the tenant has preferred this Civil Revision Petition challenging the correctness of the order of the District Judge.

6. In the very forefront of his argument the learned Counsel for the tenant contended that the District Judge fell into an error of fact as he seems to have been of the opinion that the landlord was in occupation of the upstair portion of the shop premises facing Nethaji Road. The learned Counsel was at pains to submit that it was not even the landlord's case that he was in occupation of that portion as his case had all along been that he was residing only in the upstair of that portion of the building which is facing R.K.V. Road.

7. We are unable to say that the learned District Judge has committed any error of fact. The evidence on record is not quite clear. We are free to confess that the interpretation sought to be put by the learned Counsel for the tenant on the evidence on the side of the landlord is not unreasonable or impossible. The view pressed upon us is that the evidence shows that the landlord was in possession of the upstair in Nethaji Road and that neither himself nor the members of the family were occupying or living in that portion. We cannot accept this as the proper reading of the evidence. The question is purely one of fact and we are unable to say that the finding of the learned District Judge is Unsupported by the evidence on record. The learned District Judge has observed as follows in his judgment:

I feel that the learned Subordinate Judge fell into a grievous error in thinking that the petitioner and his family were living in another house and not in a portion of the building where the tenant occupies a portion....The landlord is occupying the upstairs portion and living there with his family. He has also got the downstairs portion as his business place. The premises occupied by the respondent is a portion of the main building and there are other shops in a row.

We entirely agree with this view of the learned District Judge. The question, therefore, arises whether on this finding the landlord can sustain the application, for eviction under Section 7(3)(c) of the Act.

8. The relevant provisions of the Act may now be noted. Section 2(1) defines ' Building'..

2. (1) ' Building ' means any building or hut or part of a building or hut, let or to be let separately for residential or non-residential purposes and includes--

(a) the garden, grounds and out-houses, if any, appurtenant to such building, hut or part of such building or hut and let or to be let along with such building or hut.

(b) Any furniture supplied by the landlord for use in such building or hut or part of a building or hut, but does not include a room in a hotel or boarding house.

Section 7(3)(c), which is the crucial provision that has to be considered in this case, reads:

A landlord who is occupying only a part of a building, whether residential or non-residential, may, notwithstanding anything contained in Clause (a), apply to the Controller for an order directing any tenant occupying the whole or any portion of the remaining part of the building to put the landlord in possession thereof, if he requires additional accommodation for residential purposes or for the purposes of business which he is carrying on, as the case may be.

One other provision of the Act may also be referred to, and that is Section 7(e), which reads,

The Controller shall, if he is satisfied that the claim of the landlord is bona fide, make an order directing the tenant to put the landlord in possession of the building on such date as may be specified by the Controller and if the Controller is not so satisfied, he shall make an order rejecting the application:Provided that, in the case of an application under Clause (c) the Controller shall reject the application if he is satisfied that the hardship which may be caused to the tenant by granting it will outweigh the advantage to the landlord....

9. ' Building ' includes part of building, but that part must be let or must be such as to be let separately for residential or non-residential purposes. The anxiety of the Legislature in defining the word ' building ' as including a part, was, perhaps, only to obviate any contention which might be urged by a tenant in portion of a house from being evicted where sufficient grounds for eviction are present, and to confer the same privileges on a tenant of a part of those conferred upon a tenant in occupation of the whole. We may also observe that the Legislature has taken into account modern conditions of living and new modes of constructing buildings consisting of multiple storeys due to lack of availability of abundant house-sites. References may be made to the fallowing observations of Jessel, M.R. in Yorkshire Insurance Co. v. Claylon (1881) L.R. 8 Q.B.D. 424:

Formerly houses were built so that each house occupied a separate site, but in modern times a practice has grown up of putting separate houses one above the other. They are built in separate flats or storeys : but for all legal and ordinary purposes they are separate houses. Each is separately let and separately occupied, and has no connection with those above, or below, except in so far as it may derive support from those below, instead from the ground as in the case of ordinary houses.

The statutory definition of ' building ' as comprising a part would not however, convert the part into a whole. Though the law might treat for purposes of a particular enactment a part of a building as really a whole building or in taking it as an entity for purposes of that enactment, it would a best, be a statutory ficuon. Any amount of fiction would not alter the hard fact, viz., that a part is part and is never the whole. Section 7(3)(c) of the Act has to be read, if possible uninfluenced by fictions of any kind. Even statutory fictions are limited in their application as they should be confined to the purpose for which they are created. Any extension beyond that purpose would not be permissible having regard to the canons of interpretation of statutes. This provision, Section 7(3)(c), enacts that a landlord who is in occupation of a part of a building may apply for an order directing the tenant occupying the whole or a portion of the remaining part of the building to put the landlord in possession if he requires additional accommodation. The words ' part of a building ' occurring in this section are not abstruse and do not present a problem to be solved by seeking the aid of any rule of interpretation of statutes. The words employed are plain English words whose meaning is simple and whose grammar is not difficult. The plain meaning of this section, is that a landlond in occupation of a portion of a block of buildings can, for his own accommodation evict the tenant in occupation of another of the same block. This he would be entitled to whether or not the portion in the occupation of the tenant has got, means of separate ingress and egress, whether it has been registered in the Municipal Property Register as a separate unit of assessment or not, and whether the access to the house is by the same street from which the landlord has got access to his own portion or not. These are wholly irrelevant circumstances in order to ascertain the true position under Section 7(3)(c) whether a landlord requires additional accommodation being in occupation of a portion of the building and seeking to evict a tenant in occupation of another portion of the same building.

10. The words ' part of a building' in Section 7(3)(c) of the Act should receive their ordinary meaning without in any way being influenced by the definition of the word ' building' in Section 2. We would also like to point out that the definition in Section 2 itself is hedged in by the following words ' unless there is anything repugnant in the subject or context'.

11. The decisions of this Court disclosing conflict of judicial opinion may now be referred to. In Arunachala Naicker v. Gopal Stores (1955) 2 M.L.J. 206 Mack, J., expressed the view that the mere fact that buildings let separately are comprised in the one structural building would not enable the landlord to rely upon the provisions of Section 7(3)(e) of the Act to evict the tenant from the portion in his occupation. At page 207, the learned Judge pointed out as follows:

The position is not free from difficulty in view of the statute defining a building as also part of a building. It is in the light of this, that Section 7(3)(c) has to be applied to the present case. As I see it, the position is in no way different to that of a landlord doing business in one building purchasing a building next to his and seeking to eject from it a long-standing tenant doing business there for twenty-five years. To such a case Section 7(3)(c) would in my opinion not apply. Nor will it apply to the present case merely by reason of the fact that the portions of this building in which petitioner and respondent did business separately are comprised in one structural building the whole of which was purchased by the respondent.

In substance, the view of the learned Judge is that what is physically a part of the building would become artificially a separate building because of the operation of the special definition of ' building ' in the Act. We must observe, speaking with respect, that the logic and reasoning of the learned Judge do not appear to be sound.

12. Panchapakesa Ayyar, J., however, expressed a contrary view in Ganapathi Pandian v. Sheik Muhammad and Brothers (1957) 71 L.W. 45. In that case there were two tenants on the first floor of a lodging house containing fourteen rooms. One of them kept a photo studio and the other was running a musical stores. The landlord filed an application for eviction of the tenants on the ground that he required the rooms as additional accommodation for his business in good faith for the expansion of his lodging house. The tenants contended that the two rooms rented out to them would constitute separate buildings as they were parts of a building and that the provisions of Section 7(3)(c) should not be called in aid. The tenant's contention was negatived by the Court below and also by Panchapakesa Ayyar, J. At page 46 the learned Judge observed after referring to the decision of Mack, J., in Arunachala Naicker v. Gopal Stores (1955) 2 M.L.J. 206 thus:

He (counsel for the respondent) said that the ruling in question would not apply to this easel and that the definition of a ' building as including a portion of building ' in Section 2, will not prevent ' the building ' in Section 7(iii)(c) being construed in a different way. There is no doubt whatever in my mind that he is right.... It is clear, therefore, to me that the word ' building ' which is defined in Section 2 as meaning ' any building or portion of a building let or to be let separately ' cannot have the same meaning as the word ' building ' in Section 7(iii)(c) where the phrase ' who is occupying only a portion of a building ' will have a wider connotation. It is absurd to say that ' building ' should always mean ' a portion of a building.

13. These two decisions were considered by Ramachandra Iyer, J., as he then was, in Veerappa Naidu v. Gopalan (1961) 1 M.L.J. 223. The facts of that case were as follows: The respondent owned buildaing at Theni bearing Union Door Nos. 320, 321 and 322. Door Nos. 320 and 322 were shops situate on either side of Door No. 321 which was residential portion occupied by the landlord, and, the members of his family. All the three portions formed one structure and were integrally connected. The shop bearing Door No. 320 was leased out to the petitioner who was carrying on business in electrical goods. The respondent (landlord) was running a business called Gopal Radio Service in shop bearing Door No. 322. The brother of the respondent started a business and he was a qualified radio mechanic. As the accommodation available in shop bearing Door No. 322 was found insufficient he took upon lease a building in another part of Them. Stating that shop No. 322 was necessary for the business carried on by the younger member of the family the respondent filed a petition for eviction of the petitioner under Section 7 of the Act. The question that directly arose was, whether, what was structurally a part of a building could not be recovered possession of by the landlord, for his own purposes, residential or non-residential, by reason only of the fact that the portion had a separate door number as per the Panchayat register. The learned Judge disagreed with the observation of Mack, J., which was the decision cited by the tenant in support of the contention that he could not be evicted. At page 225 the following observation occurs.

With great respect to the learned Judge, Mack, J., I am unable to agree with the latter proposition. A part of a building in occupation of the landlord will not be a building as defined by the Act, though the part in the occupation of the tenant will be one. Section 2(1) which defined building creates a fiction in regard to certain cases, whereby a part of a building is deemed to be a building. A part of building to which that fiction would not apply abviously constitutes a building under the Act but would still be called a part of the building. Section 2(1) states that ' building' means any building or hut or part of a building or hut, let or to be let separately for residential or non-residential purposes, etc. Therefore, a part of a building will be deemed to be building for the purpose of the Act only if it is let or. intended to be let. A portion in the occupation of the landlord cannot be said either to be let or intended to be let. Therefore, that portion will not constitute a building under the Act, and could only be termed a part of the building.

The view of the learned Judge was that the portion in the possession of the landlord would not fall within the definition of' building ' as it was neither let nor intended to be let, and, therefore, there was no impediment to the operation of Section 7(3)(c) of the Act, assuming the portion occupied by the tenant would amount to a ' building ' within the meaning of the Act.

14. In our opinion there is no warrant to deprive the words in Section 7(3)(c) of the Act of their ordinary and natural meaning by engrafting the artificial definition of the word ' building ' in Section 2 upon them. The definition itself is restricted in its operation only when there is nothing repugnant in the subject or con text. We cannot assume that ' part of the building ' which means physically and structurally a limb or portion, ceases to possesses that character, because of the definition. We feel convinced that such an interpretation of the section would result in depriving it of any useful purpose. With respect we follow the decision in Veerappa Naidu v. Gopalan (1961) 1 M.L.J. 223 and, disagree with the decision of the Mack, J., in Arunachala Naicker v. Gopal Stores (1955) 2 M.L.J. 206.

15. Next, it is contended that the landlord's application is not bona fide and has therefore to be rejected. Lack of bona fide is inferred because of the delay in filing the application after the issue of notice to quit and because of the fact that the landlord intends to use the premises in question not immediately but in the future. This argument is the result of misconception of the true meaning and import of the term bona fide in the context in which it appears. If the avowed purpose of requiring additional accommodation cannot be distrusted, or, characterised as a mere make believe, shift, or device to put the tenant out of possession, there can be no want of bona fides. What is meant by bona fides is that the landlord should not seek eviction on the pretence of requiring additional accommodation with the oblique motive of achieving some other purpose. The learned District Judge was perfectly right in finding that the landlord, has established the fact that he is in need of additional accommodation for his own residential purposes.

16. The learned Counsel for the tenant next urged that more hardship will be caused to the tenant by eviction than the advantage which would result to the landlord by securing the portion for his purpose. This argument is based upon the Proviso to Section 7(3)(c) which reads:

Provided that, in the case of an application under Clause (c) the Controller shall reject the application if he is satisfied that the hardship which may be caused to the tenant by granting it will outweigh the advantage to the landlord.

The learned District Judge is, however, of the view that the claim of the landlord would not be hit by the terms of the Proviso as, in fact, the tenant would not suffer any prejudice or hardship because he can get accommodation elsewhere. The Proviso ought not to be read as conferring a practical immunity on the tenant from being displaced from the demised building even at the expense of the landlord suffering inconvenience and hardship. It is certainly not the object of the Proviso to weigh the hardship of the tenant as against the advantage of the landlord on delicate scales giving the benefit of slight tilting in favour of the tenant. The substance of the provision is that the Court should take into account the possible hardship that would ensue to the tenant if he were to be evicted, and, if the Court were to find, in a proper case, that while the hardship resulting to the tenant would be considerable the advantage accruing to the landlord would be little or small the application might be rejected.

17. In the result, the Civil Revision Petition fails and is dismissed with costs. The tenant has had sufficient time to arrange for his accommodation elsewhere, and, we do not think we will be justified in granting more than a month's time from today for delivering possession to the landlord.


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